Flags – and flag poles – often serve as a source of conflict between common interest community association members, who seek to enforce standards designed to preserve the appearance of their communities and protect property values, and the individuals residing in those communities, who wish to exercise their constitutional freedoms of speech and expression and support their country and its troops.  For the many of the estimated fifty-seven million Americans living in common interest community associations, waiving those flags just became a little easier.
On July 24, 2006, President George W. Bush signed into law H.R. 42 "The Freedom to Display the American Flag Act of 2005".  H.R. 42 prohibits common interest community associations from adopting or enforcing a policy or agreement that "would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use."  The law does provides certain prohibitions, namely; (1) flags must be displayed in a manner that is consistent with any rule or custom pertaining to the proper display or use of the flag, including the Federal Flag Code, 4 U.S.C. ‘ 1 et seq.; and (2) common interest community associations may place reasonable time, place and manner restrictions on such display of the flag necessary to "protect a substantial interest" of the association.
Although this new law bolsters the ability of many individuals throughout the country to overcome their respective associations’ restrictive rules and regulations pertaining to displaying the American flag, this provision only enhances the protections already granted to common interest community associations by New Jersey law.  In 2003, the Planned Real Estate Development Full Disclosure Act ("PREDFDA"), N.J.S.A. 45:22A-48.1, was amended to add such protective provisions to those individuals residing in common interest community associations wishing to display the American Flag or yellow ribbons or signs supporting U.S. troops.  This provision provides:
“A homeowners’ association formed to manage the elements of property owned in common by all members of a community, whether it be an association managing a condominium, a private community, including retirement communities, or a cooperative housing development, shall not adopt or enforce a rule or bylaw limiting or prohibiting the display of the flag of the United States of America or yellow ribbons and signs supporting United States troops.  Any such rule or bylaw adopted by a homeowners’ association in violation of this section shall be null and void.”
This provision goes on to allow for the removal of any such flags, ribbons or signs when such display threatens public safety, restricts necessary maintenance activities, interferes with the property rights of another or is conducted in a manner inconsistent with the proper way to display the flag or the Federal Flag Code.
If you would like to discuss how The Freedom to Display the American Flag Act of 2005 may affect your association in more detail, please contact one of the attorneys in Stark & Stark’s Community Associations Group.